JAMESON v. DESTARespondent’s Supplemental BriefCal.November 13, 2017 S230899 eHOnT gT Ath Civ. No.D066793. “ wt SUPREME COURT FILED IN THE OCT 1 8 2016 Supreme Court OF THE STATE OF CALIFORNIA Jorge Navarrete Clerk Deputy BARRYS. JAMESON, Plaintiffand Appellant, Vv. TADDESE DESTA, M.D., Defendant and Respondent. After a Published Decision by the Court of Appeal, Fourth Appellate District, Division One Case No. D066793 RESPONDENT’S COMBINED ANSWER TO THE AMICUS BRIEFS OF THE FAMILY VIOLENCE APPELLATE PROJECT, AMERICAN BAR ASSOCIATION, AND CALIFORNIA ACADEMY OF APPELLATE LAWYERS,ET AL. COLE PEDROZA LLP LA FOLLETTE, JOHNSON, DEHAAS, KENNETHR. PEDROZA, SBN 184906 FESLER & AMES JOSHUA C. TRAVER, SBN 229778 JAMESJ. WALLACE,II, SBN 128627 *CASSIDY C. DAVENPORT, SBN 259340 *DAVID J. OZERAN, SBN 137452 (cassidydavenport@colepedroza.com) (dozeran@ljdfa.com) 2670 Mission Street, Suite 200 501 West Broadway, Suite 1075 San Marino, CA 91108 San Diego, CA 92101 Tel: (626) 431-2787 - Tel: (619) 400-4977 Fax: (626) 431-2788 Fax: (619) 400-4979 Attorneysfor Defendant and Respondent, TADDESE DESTA, M.D. TABLE OF CONTENTS Page INTRODUCTION TO COMBINED ANSWER TO AMICUSBRIEFS........ccccccececccsscsssssssescccsssececesssesccssucesscesseuceccetsceseeees 1 COMBINED ANSWERTO AMICUSBRIEFS.......cccccccecccocecocccceceee 3 I. AMICI’S POLICY CONCERNS ARE NOT IMPLICATED HERE .........:ccccccsesssssscecsecssccesesssessusecececcesecucucsssscsssesensnsceeceeccs 3 II. AMICI DISREGARD THE BUDGETARY REALITIES THAT GAVE RISE TO THE CURRENT SUPERIOR COURT POLICY AND THEY IGNORE THE PRACTICAL EFFECTS OF THEIR PROPOSED RULEvesccceccseeeee. 6 III. Amici SIMPLY REJECT THE ALTERNATIVE METHODSOF PRESENTING THE UNDERLYING ORAL PROCEEDINGS TO THE APPELLATE COURTSvesccccceceseecececeeee 8 IV. THE ABA MODEL RULES AND STANDARDS Do NOT ENCOURAGE COURTSTO PROVIDE COURT REPORTER SERVICES AT PUBLIC EXPENSE.....ccccccccececcceeee 11 V. THE SUPERIOR COURT POLICY DID NOT RESULT IN PREJUDICE TO PLAINTIFF.......cccccccccccccccccccccccssecsseeseseeseceses 12 CONCLUSION...cccccccceccsscsccssssseseccesseccssercescsssescsecceseserceseeceseee 14 CERTIFICATIONou...eesecesessssssesssesssssscsessessesevsccsnsssecavsceacseeseaees 15 TABLE OF AUTHORITIES Page(s) CASES Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396 oo... cccecsssssssccccssscssscscesscsscssssccsescssseesesesss 9 Taliaferro v. Hoogs (1965) 237 Cal.App.2d 73.0... eccecsscecesecsessessssssesesesecsesesscessessscsssaseees 5 STATUTES Code of Civil Procedure Section 5816 wc.cccescssscsssssssscsssssesscecscsesecsessssecsseecsseceesersesenees 9 Section 583.310 uu... cecssssscssscsssccecscesesccssessessecsscesseeseecsees 2, 12 Government Code Section 69948oo...cee ccsscssssssseccsssessscscssccessssscsssssasesstecsccesscesees 7 RULES California Rules of Court Rule 8.134 wovececcccscssscssscsssesssscecsccceccsssessecsssecseccsssessssceussens 9 Rule 8.137 ooo. cccccssccsssccsscssesscssscessscscsscssccssscsecceetscessscssessesessusenes 9 ii INTRODUCTION TO COMBINED ANSWER TO AMICUSBRIEFS Plaintiff in this action is an incarcerated civil litigant who sued defendant Taddese Desta, M.D. for personalinjury damagesarising from his allegation of medical negligence. Plaintiff did not procure a court reporter to transcribe his opening statement, which wasthe only oral proceeding relevantto this appeal. Thetrial court entered nonsuit for plaintiff's failure to offer an expert witness on the issue ofthe standard of care and causation. The absence ofa court reporter was immaterial, however, because regardless of whatplaintiff raised in his opening statement, nonsuit was inevitable. Plaintiff did not have an expert witness to support his case. The Court should affirm judgmentin favor of Dr. Desta and hold thatcivil litigants who sue for personal injury damagesare not entitled to official court reporter services at public expense. The absenceofa court reporter during plaintiff's opening statement was harmless for a numberofreasons, not the least of which was plaintiff's failure to designate and thereforehis inability to callattrial an expert witness to offer opinions on the standard of care and causation. The briefs ofamici curiae attempt to expand the scopeofthis case for the purpose of proposing a rule that California Superior Courts must provide official court reporter services to indigentcivil litigants at public expense. Even if the Court adopted sucha rule,it would be immaterial for the resolution of this matter because even if the Court ofAppeal Opinion is reversed, this case would be remanded to the Court ofAppeal for consideration ofthe remaining, dispositive and unaddressedissues. Stated differently, even if the Court is persuadedbyplaintiff and amici that the Superior Court erredin failing to provideplaintiff a free court reporter at trial, that error was harmless. There were many reasonsthetrial court ruled against plaintiff below. The Court of Appeal did not considerall of those grounds for affirmance, including the trial court’s dismissal based onplaintiffs delay in prosecuting his case pursuant to Code of Civil Procedure section 583.310. Should this case be remanded for further proceedings, this Court should direct the Court of Appeal to consider whetherthe absence of a court reporter duringplaintiff's opening statementresulted in prejudice. COMBINED ANSWER TO AMICUS BRIEFS | Dr. Desta respondsas follows to the amicus briefs filed by the Family Violence Appellate Project and 30 organizations and individuals representing survivors of family violence; the American BarAssociation; and the California Academy ofAppellate Lawyers, Beverly Hills Bar Association, Inner City Law Center, Legal Aid Association of California, Legal Aid Foundation of Los Angeles, Los Angeles Center for Law and Justice, Los Angeles County Bar Association, Public Counsel, Neighborhood Legal Services ofLos Angeles County, Professor Erwin Chemerinsky, Professor David Marcus, Professor Judith Resnik, Professor Louis S. Rulli, and Western Center on Law andPoverty. I. AMICI’SPOLICY CONCERNS ARE NOT IMPLICATED HERE Amici raise public policy concerns to support their proposed rule. For example, the Family Violence Appellate Project and related amici argue such a rule is necessary because in family violencecases, the survivors’ “lives and safety, and the lives and safety oftheir children, are at stake.” (Family Violence Appellate Project Amicus Brief (“FVAP Brief”), p. 1.)! The American Bar Association emphasizes standards designedtoassist litigants who “lack{] the ' FVAP incorrectly assumes that the Superior Court does not provide reporter services for domestic violencerestraining order hearings. (See FVAP Brief, p. 5.) The San Diego Superior Court policy provides court reporters for Family Support Division matters (actions filed by the Department of Child Support Services) and Domestic Violence Restraining Order hearings. (Petition for Review, Exh. A.) 3 knowledge necessary to navigate the court systems.” (American Bar Association Amicus Brief(“ABA Brief”), p. 32.) The amicus brief of the California Academy ofAppellate Lawyers, et al., cites a report concluding that low incomeindividuals do not have resources available to obtain legal representation in cases involving “divorce, child support, child custody, domestic violence, loss of housing and employment, and discrimination.” (California Academy ofAppellate Lawyers, et al. Amicus Brief (“CAAL Brief’), p. 9.) In light of these policy concerns, amiciargueit is the duty of California courts to safeguardthe rights ofthese indigent and in propria personalitigants to meaningful accessto the courts by providing official court report services. But the policies cited by amici are not implicated here. Plaintiff Jameson is not an unsophisticated prose litigant with little to no knowledgeofthe court system. Hehasfiled many lawsuits as a self-represented litigant since being incarcerated and he has gained extensive knowledgeofthe court system. In fact, his persistent and obsessive tactics resulted in the United States Supreme Court declaring him a vexatiouslitigant. (See Barry Jamesonv. Jeffrey Beard, Secretary, Cal. Dept. ofCorr. And Rehab. (October 19, 2012, Case No. 11-80162) Mar. 18, 2013 Order, accessible at [“Asthe petitioner has repeatedly abused this Court’s process, the Clerk is directed not to accept any further petitionsin noncriminal matters from petitioner unless the docketing fee required by Rule 38(a)is paid and the petition is submitted in compliance with Rule 33.1. See Martin v. District ofColumbia Court ofAppeals, 506 U.S. 1 (1992) (per curiam)”], last accessed October 6, 2016.) Plaintiff has navigated the instant action from its inception in 2002 and through three appeals. Heis not the “helpless”litigant about which amici are concerned. (See ABA Brief, p. 22.) Plaintiffis a savvy litigant who has been deemedan abuserofthe court system. In fact, it is his tactics that have hadthe effect of limiting access to justice for manyotherlitigants with legitimate claims. (See Taliaferro v. Hoogs (1965) 237 Cal.App.2d 73, 74 [The constantsuer for himself becomesa serious problem to others than the defendant he dogs. By clogging court calendars, he causes real detriment to those whohavelegitimate controversies to be determined andto the taxpayers who mustprovide the courts”].) Moreover, plaintiff's fundamental rights are not at stake in this action. Plaintiff does not face a determinationthat will impact his basic human needsorsafety. This case does not address the problem of family violence victims, probate, or parental custody litigants and their accessto civil justice. Rather, plaintiff has sued Dr. Desta for civil damagesarising from his allegations that Dr. Desta prescribed him the wrong medication while he wasin jail. Plaintiffs right to seek monetary compensation forhis alleged injury is not a fundamental right. Jameson’s position as a civil tort plaintiffis separate and distinct from other classes of self-represented and/or indigentlitigants. While access to justice should be protected, abuse of the system should not. Where,ashere, a personal injury plaintiff sues his physician but fails to establish the elements of his claim during opening remarks, an 5 official court reporter transcript is unlikely to changetheresult of the action. Each oftheparticipants in this matter understoodplaintiff did not designate an expert witness to prove breach ofthe standard of care and causation, and it wasclearto all that there would be no expert to testify live in court on plaintiffs behalf. (Respondent’s Appendix,p. 254 [4/28/14 Minute Order].) The presenceofan official court reporter was irrelevant as nonsuit was inevitable after plaintiff's opening statement. In short, amici identify no public policy justifying a departure from the Superior Court’s policy in this case wherea civillitigantis suing to recover personal injury damages. Il. AMICI DISREGARD THE BUDGETARY REALITIES THAT GAVE RISE TO THE CURRENT SUPERIOR COURT POLICY AND THEY IGNORE THE PRACTICAL EFFECTS OF THEIR PROPOSED RULE The Superior Court’s policy is the result of an unprecedented fundingcrisis due to state budget cuts to the judiciary. These cuts had a severe impact on the Superior Court’s ability to provide even the most basic of services. Courthouses and courtroomsshuttered, staff memberswerelaid off, and furlough days and reduced hours of service were imposed. The elimination of official court reporter services in civil matters was necessary to ensure the court’s continued operation. The only amicus to acknowledge the circumstancesgiving rise to the Superior Court policy is the ABA, which notedthe “budgetary challenges facing state courts, andthe difficult decisions in 6 determining where and how to save money.” (ABABrief, p. 27.) The ABAarguesgenerally that the cost of court reporter services should not beshifted to litigants because “the financial conditions that forced the courts to cut their budgets are the same ones facing the people of California.” (/d. at pp. 27-28.) Despite the onerous budget cuts facing California courts, amici proposethat already scarce funds be allocatedto official court reporter services. These fees can be significant, with the Government Code prescribing a minimum $55 per day fee for reporting testimony. (Govt. Code, § 69948.) That amount is more than double in many counties. (/bid.) Andin cases involving complexissues, like medical negligenceactions,trials can span several weeks. The cost to the courts of simply having a court reporter present during those types of lengthy trials can be in the thousandsofdollars. That does not even account for the cost of preparing the transcripts of the proceedings. Amici do not suggest how the courtsare to achievethis feat in light of their severe budgetary constraints. They leave even the most basic practical questions abouttheir proposal unanswered. For example, when would court reporter services be provided? Must the courts provide reporters for routine matters, such as ex parte applications and case management conferences? Or would the services be guaranteed only for hearings that couldresult in the disposition of a case? Who makesthat determination? Furthermore, are the courts required to fund copies ofthe reporter’s transcripts in addition to the court reporter services? The amicus briefs do not answer these questions. Nor do they address the likely effects of their proposedrule. 7 Whilenoblein theory, amici’s proposal would have widespread negative effects on an already overburdened court system. If court fundsareto be redirectedto official court reporter services, what other court services will be reduced? The courts may be forced to suspend self-help services for the indigent or mediation and settlement programs. The primary concern underlying amici’s briefs — accessto justice — will be compromisedfor aillitigants in California, not just those whoreceive fee waivers and requestcourt reporter services for their personal injury cases they are prosecuting. The Court should reject amici’s proposal and deferto local Superior Courts to allocate their limited resources in the mannerthey see fit. Ill. AMIcTSIMPLY REJECT THE ALTERNATIVE METHODS OF PRESENTING THE UNDERLYING ORAL PROCEEDINGS TO THE APPELLATE COURTS Amici assumethat a verbatim official reporter’s transcript of the oral proceedings is the only wayto effectively preserve litigant’s right to appeal. They discountor outright reject the alternative methodsfor preserving the oral record ofproceedings which was created by the Legislature. California Rules of Court, rule 8.137 provides a viable method for obtaining meaningful appellate court review by wayofa settled statement. The statute provides a process by whichthe parties attempt to agree uponthe testimony or arguments,after which any disputes between them are “settled” by the judge. That “settled statement” then becomesthe substitute for the reporter’s transcript on appeal. 8 Significantly, here, plaintiff did not attempt to obtain a settled statement. Rule 8.134 provides yet another methodto preserve the oral record by meansofan “agreed statement.” This method requires cooperation betweenthe parties to memorialize the testimony and/or arguments. Significantly, litigants do not lose favorable appellate presumptions whenthey proceed byeither of these means. The processis valid and effective in preserving the record oforal proceedings for appellate review. Thisis particularly true in cases that involve minimaloral proceedings onstraightforward issues, such asthetrial in this matter. The only oral proceedingat issue in this case was plaintiff's opening statement. Thetrial court was called to decide the legal sufficiency of the evidence proffered by plaintiff during his opening remarks. (Code Civ. Proc., § 581c.) The court granted Dr. Desta’s motion for nonsuit based onplaintiffs failure to meet his burden ofproof by wayof, competent expert opinion testimony on the standard of care and causation. (See Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.) There was no witness testimony in this case. Nor did the parties or the court expectthere to bein light ofplaintiff's failure to designate an expert witness to prove his claim of medical negligence. Both parties made the conscious decision to forego court reporter services to memorialize what was anticipated to be a very brief oral proceedingonplaintiff's opening remarks. Thetrial court wasnot “required by statute to make factual findings[,]” as in family violence matters. (FVAP Brief, p. 1.) Nor 9 was the Court ofAppealin this case called to decide whether substantial evidence supported a jury verdict or whetherthetrial court abusedits discretion in ruling on a particular evidentiary matter during trial. Had plaintiff availed himself of the alternativesto anofficial reporter’s transcript, he could have easily preserved the record. But he chosenot to. If the court ruled against Dr. Desta, he too could haveutilized the agreed orsettled statement procedures to preserve the oral record on appeal. That is to say, Dr. Desta faced the samerisk asplaintiff in choosing to forego court reporter services. Amici reject these alternative methods ofpreservingthe oral record on appealfor reasonsthat are not implicated here. For instance, the Family Violence Appellate Project contends agreed or settled statements not a “tenable option” in family violence matters. (FVAP Brief, p. 4, fn. 7.) This is because a survivor of violence should not be forced to collaborate with his or her abuser. (/d.at p. 8.) The ABAarguesthesealternatives require legal acumen and may be challenging for self-represented litigants. (ABA Brief, p. 10, fn. 5.) For reasonsidentified above, amici’s concernsare not relevant here. Contrary to the position of amici, the remedyofa settled or agreed statement is complete, adequate, and effective, such that there is no barrier to, or denial of, access to appellate justice. 10 IV. THE ABA MODEL RULES AND STANDARDS Do NOT ENCOURAGE COURTS TO PROVIDE COURT REPORTER SERVICES AT PUBLIC EXPENSE Amici ABAcite the Model Rules, Standards, and Canons as collateral sources for guidance on this issue. Not one of those standardsor policies encourages courts to offer free court reporter services to personal injury litigants who have been granted a fee waiver. Rather, the ABArelies on the general principles favoring accessto justice, as well as the responsibilities oftrial judges to enable litigants the full benefit ofthe right to review and to make reasonable accommodationsto pro perlitigants in order to have matters fairly heard. The ABAcites Rule 2.41 ofthe Standards Relating to Trial Courts to suggest that trial courts are responsible for administering court reporting services to make and transcribe the record. (ABA Brief, p. 14.) However, Rule 2.41 merelystates that the trial court administrator should provide administrative services in conformance with other ABA guidelines. It lists examples of administrative services, including the “staff service” of “court reporters.” (Rule 2.41, subd. (c).) The Rule does not state, let alone suggest, that the courts are responsible for providing court reporter services. Neither does Rule 2.42 promote official court reporter services to indigent litigants. That rule simply describes the responsibilities of court reporters, includingtheir “professional independence”in regard to the accuracy oftheir reporting, and the managementofthose services by court policies. (Cited at ABA Brief, pp. 14-15.) 11 ABA’s conclusionthat it “has long encouragedtrial courts to provide court reporters” simply does not follow. (ABABrief, p. 19.) The ABAis unableto cite any policy or standard advocatingthe rule they ask this Court to adopt. In any event, this matter was fairly heard andplaintiff could have — but chose notto — preserve the underlying proceedingthat consisted ofhis opening remarks and the subsequentgrant of nonsuit. V. THE SUPERIOR COURT POLICY DID NOT RESULTIN PREJUDICE TO PLAINTIFF Evenifthis Court is inclinedto find error in the Superior Court’s refusal to provide an official court reporter in this matter, that error was harmless, such that the judgment in favor of Dr. Desta should be affirmed. Plaintiff was notified that an official court reporter would not be provided in his medical negligence action against Dr. Desta, pursuant to the San Diego Superior Court policy of not providing court reportersfor civil trials. On the first day of trial, Dr. Destafiled a written motion to dismiss the case based onplaintiff's failure to have broughtthe casetotrial within five years offiling. (Code Civ. Proc., § 583.310.) The trial court deferred ruling until aftertrial began. The minute orders reflect that plaintiff conceded that the time limit for bringing the caseto trial had expired. (Respondent’s Appendix, p. 257.) Plaintiff failed to designate an expert to establish breach of the standard of care and causation. His trial documents indicated that he 12 intendedto rely on the deposition of an expert that he had previously retained and whohad supported him in opposing Dr. Desta’s motion for summary judgment. Dr. Desta movedin limine to preclude plaintiff from relying on the expert’s deposition transcript based on (1) the failure to designate and (2) plaintiff's failure to show that the expert was “unavailable”fortrial, as required bystatute. After plaintiff gave his opening statement, the defense moved for nonsuit on the groundthat plaintiff could not prove breach ofthe standard of care or causation. Thetrial court granted the motion. At that time, the trial court also granted Dr. Desta’s motion to dismiss for delay in getting the caseto trial. Plaintiff's opening statement and arguments on the motion for nonsuit were not reported by a court reporter. Plaintiff did not seek to prepare an agreedorsettled statement. The Court ofAppeal rejected plaintiff's contention that he was entitled to a free reporter. Given the absence of an appellate record, the Court ofAppeal determinedit could not finderror in granting nonsuit. The Court ofAppeal declined to consider plaintiff's challenge to the dismissal based onfailure to get the casetotrial, finding the nonsuitruling to be a sufficient basis to affirm the judgment. In the event this matter is remanded for further proceedings, the Court should direct the Court ofAppeal to consider all of the reasons whythetrial court ruled againstplaintiff, including the dismissal based on delay in prosecution. Plaintiff's failure to designate an expert and establish his prior expert’s unavailability at trial are dispositive ofhis case. 13 _ CONCLUSION This Court should affirm the judgment. A personal injury plaintiff is not entitled to a court reporter at the court’s expense, nor would a reported opening statement have changed the result here. If this Court is inclined to reverse the judgment for Dr. Desta,it should remandthis matter to the Court ofAppealto consider the remaining dispositive issues, including plaintiff's delay in prosecuting his case, which the Court ofAppeal did not addressinits opinion because it decided there were alternative groundsto affirm the judgment. DATED: . October 17, 2016 LA FOLLETE, JOHNSON, DEHAAS, FESLER& AMES & COLE PEDROZA LLP Kenneth R. Pedroza Joshua C. Traver Cassidy C. Davenport Attorneys for Defendant and Respondent TADDESE DESTA, M.D. 14 CERTIFICATION Appellate counselcertifies that this document contains 3,272 words. Counsel relies on the word count of the computer program used to preparethebrief. DATED: October 17, 2016 LA FOLLETE, JOHNSON, DEHAAS, FESLER & AMES & COLE PEDROZA LLP by 0A~DA Kenneth R. Pedroza Joshua C. Traver Cassidy C. Davenport Attorneys for Defendant and Respondent TADDESE DESTA,M.D. 15 PROOF OF SERVICE Iam employed by Cole Pedroza LLP,in the County ofLos Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 2670 Mission Street, Suite 200, San Marino, California 91108. Onthe date stated below,I served in the manner indicated below, the foregoing document described as: RESPONDENT’S COMBINED ANSWERTO THE AMICUSBRIEFS OF THE FAMILY VIOLENCE APPELLATE PROJECT, AMERICAN BAR ASSOCIATION, AND CALIFORNIA ACADEMY OF APPELLATE LAWYERS,ET AL. ontheparties indicated below by placinga true copy thereof, enclosed in a sealed envelope addressed as follows: SEE ATTACHEDLIST By United States Postal Service — I am readily familiar with the business’s practice for collecting and processing ofcorrespondence for mailing with the United States Postal Service. In that practice correspondence would be deposited with the United States Postal Service that same day in the ordinary courseofbusiness, with the postage thereonfully prepaid, in San Marino, California. The envelope wasplaced for collection and mailing onthis date following ordinary businesspractice. I declare under the penalty ofperjury under the laws of the State of California that the foregoing is true and correct. Executed this 17th day of October, 2016. SaraMazzeo 70 16 SERVICE LIST MichaelShipley, SBN 233674 Sierra Elizabeth, SBN 268133 KIRKLAND & ELLIS LLP 333 South HopeStreet 29th Floor Los Angeles, CA 90071 Tel: (310) 680-8400 Fax: (310) 680-8500 Paulette Brown,pro hac vice AMERICAN BAR ASSOCIATION 32 North Clark Street Chicago,Illinois, 60654 Tel.: (312) 988-5000 Mary-Christine Sungaila, SBN 156795 HAYNES AND BOONE, LLP 600 Anton Blvd., Suite 700 Costa Mesa, CA 92626 Tel: (949) 202-3000 Fax: (949) 202-3001 Catherine Blakemore, SBN 075850 1831 K. Street Sacramento, CA 95811 Tel: (916) 504-5800 17 Attorneysfor Plaintiffand Appellant, BARRYS. JAMESON Attorneysfor Amici Curiae, AMERICAN BAR ASSOCIATION Attorneysfor Amici Curiae, AMERICAN BAR — ASSOCIATION Attorneysfor Amici Curiae, AMICUS CURIAE COMMITTEE OF THE CALIFORNIA COMMISSION ON ACCESSTO JUSTICE Jon B. Eisenberg, SBN 88278 509 TuckerSt. Healdsburg, California 95448 Tel: (707) 395-0111 Albert Giang, SBN 224332 Caldwell Leslie & Proctor, PC 725 S. Figueroa St., 31st Floor Los Angeles, CA 90017 Tel: (213) 629-9040 Michele L. Maryott, SBN 191993 Gibson, Dunn & Crutcher LLP 3161 Michelson Dr. Irvine, CA 92612 Tel: (949) 451-8000 18 Attorneysfor Amici Curiae, CALIFORNIA ACADEMY OF APPELLATE LAWYERS; BEVERLY HILLS BAR ASSOCIATION; INNER CITY LAW CENTER, LEGAL AID ASSOCIATION OF CALIFORNIA; LEGAL AID FOUNDATION OF LOS ANGELES; LOS ANGELES CENTER FOR LAWAND JUSTICE; LOS ANGELES COUNTY BAR ASSOCIATION; PUBLIC COUNSEL; NEIGHBORHOOD LEGAL SERVICES OF LOS ANGELES COUNTY; PROF. ERWIN CHEMERINSKY; PROF. DAVID MARCUS; PROF. JUDITH RESNIK; PROF. LOUIS S. RULLIT; WESTERN CENTER ON LAWAND POVERTY Erin C. Smith, SBN 234852 Family Violence Appellate Project 1814 Franklin Street, Suite 805 Oakland, CA 94612 Tel: (510) 858-7358 Fax: (866) 920-3889 Penelope A. Preovolos, SBN 87607 MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 Tel: (415) 268-7000 Fax: (415) 268-7522 19 Attorneysfor Amici Curiae, FAMILY VIOLENCE APPELLATE PROJECT Attorneysfor Amici Curiae, FAMILY VIOLENCE APPELLATE PROJECT